Academic journal article The William and Mary Bill of Rights Journal

Rauschenberg, Royalties, and Artists' Rights: Potential Droit De Suite Legislation in the United States

Academic journal article The William and Mary Bill of Rights Journal

Rauschenberg, Royalties, and Artists' Rights: Potential Droit De Suite Legislation in the United States

Article excerpt

"Eve been working my ass off just for you to make that profit."1

Introduction

On a rainy evening in the Upper East Side of New York in October of 1973, Robert and Ethel Scull made art history.2 The Sculls, who had made their fortune in the taxi cab business, were selling a portion of their extensive contemporary art collection3 at Sotheby Parke Bemet4 in preparation for a looming divorce.5 A Selection of Fifty Works from the Collection of Robert C. Scull6 was the "first devoted to a single collection of [contemporary art"7 featuring artists such as Andy Warhol, Barnett Newman, and Jasper Johns.8

The record sale, which fetched $2,242,900,9 was a milestone in the history of the art market. The media attention surrounding the auction was both positive and negative. André Emmerich, president of the Art Dealers Association, said about the sale, "I felt awe and shock-that pictures could be worth that much money. And a certain embarrassment-that the Sculls should have to sell in this way."10 Others were less than pleased with what they considered the commercialization of such a noble field.11 Art historian Barbara Rose argued at the time that the sale was actually the collapse of the art world, suggesting "[t]he sale itself was a circus, with those artists dumb enough to attend as a little freak show in a rear room."12 This debate between the moral integrity of art versus its often-high value as a commercial good continues today.

In addition to the critics, another person who was not happy with the sale that evening was American artist Robert Rauschenberg.13 Rauschenberg saw his Double Feature, which Scull bought in 1959 for $2,300, sell for $90,000, and his Thaw, which Scull bought a year prior for $900, fetch $85,000.14 He confronted Scull after the auction, angrily telling him, "Eve been working my ass off just for you to make that profit."15 Rauschenberg was implying that Scull had received some sort of windfall in reselling his works, realizing a massive profit that Rauschenberg clearly thought Scull did not earn or deserve.16 Even if he was pleased with the prices his pieces fetched that night, then Rauschenberg at least wanted a percentage of the profit, or a type of resale royalty known as droit de suite.

Most scholarly articles on the concept of an American droit de suite begin with the story of Rauschenberg confronting Scull after the Sotheby's auction.17 However, few continue the story to what happened immediately after Rauschenberg told his collector that he had "work[ed] [his] ass off." This Note argues that Scull's response after Rauschenberg confronted him is arguably more important in the debate about whether droit de suite legislation should be enacted in the United States. According to the reports, Scull responded to Rauschenberg, "It works for you, too, Bob. Now I hope you'll get even better prices."18 The story goes that Rauschenberg punched Scull in the stomach.19 The artist and his collector never spoke again.20

In his response to the artist, Scull emphasized that it takes more than the artist to increase the value of art work, particularly because the art itself typically has no inherent value.21 In addition to the artist, collectors, dealers, gallery owners, and museums all play an important role once the work is created. "Since exhibition history enhances value, the collectors of what we might call 'market art' have a vested interest in seeing their work take up space in traditional public collections."22 Scull did seem to have a keen sense of the art market and the appreciation of value. In a magazine article before the auction, he said he wanted to sell the works "[b]ecause the works have a life of their own. They're going to outlive me and anyone who buys them. They have a grip on the concept of art history."23 However angry Rauschenberg may have been that October evening, Scull appeared to be correct.24 Rauschenberg continued to see the value of his works appreciate and today is largely considered a master in twentieth-century American contemporary art. …

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